Gorsuch Asks Trump Lawyer If Presidents Can Be Prosecuted For Private Conduct After Leaving Office

7 months ago

During Thursday’s oral arguments in Trump v. United States, Justice Neil Gorsuch questioned the attorney for Former President Trump D. John Sauer about private vs. official conduct.

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Transcript

00:00Well, on that score, there does seem to be some common ground between you and your colleague

00:06on the other side, that no man's above the law, and that the president can be prosecuted

00:13after he leaves office for his private conduct.

00:16Is that right?

00:17We agree with that.

00:18And then the question becomes, as we've been exploring here today a little bit, about how

00:22to segregate private from official conduct that may or may not enjoy some immunity.

00:29And I'm sure we're going to spend a lot of time exploring that.

00:34But the D.C. Circuit in Blazing Game, chief judge there, joined by the panel, expressed

00:41some views about how to segregate private conduct, for which no man is above the law,

00:48from official acts.

00:49Do you have any thoughts about the test that they came up with there?

00:53Yes.

00:54We think, in the main, that test, especially if it's understood through the lens of Judge

00:57Katz's separate opinion, is a very persuasive test.

01:00It would be a great source for this court to rely on in drawing this line.

01:04And it emphasizes the breadth of that test.

01:06It talks about how actions that are plausibly connected to the president's official duties

01:13are official acts.

01:14And it also emphasizes that if it's a close case, or it appears there's considerations

01:18on the other side, that also should be treated as immune.

01:21Those are the aspects of that that we'd emphasize as potentially guiding the court's discretion.

01:24And that left open, in that case, the possibility of further proceedings and trial.

01:31Exactly right.

01:32And that would be a very natural course for this court to take in this place.

01:35The court can and should reverse the categorical holding of the D.C. Circuit that there's no

01:39such thing as official acts, especially when it comes to—

01:42But you'd agree further proceedings would be required.

01:45That is correct.

01:46There would have to be, and I would point the court to Anderson against Creighton, where

01:48the court said there'd be kind of two stages of these further proceedings.

01:51There's looking at the indictment itself, or in that case it was a complaint, but look

01:55at the charging document itself and see whether, on the face of it, this is alleging official

01:59acts.

02:00And if not, or it can't be determined, then there'd be a factual proceeding.

02:03And all that, under Mitchell against Forsyth and so forth, would have to occur before any

02:07other proceedings in the district.

Gorsuch Asks Trump Lawyer If Presidents Can Be Prosecuted For Private Conduct After Leaving Office

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